The ACLU of Connecticut is suing state police for fabricating retaliatory criminal charges against a protester after troopers were recorded discussing how to trump up charges against him. In what seems like an unlikely stroke of cosmic karma, the recording came about after a camera belonging to the protester, Michael Picard, was illegally seized by a trooper who didn’t know that it was recording and carried it back to his patrol car, where it then captured the troopers’ plotting.

“Let’s give him something,” one trooper declared. Another suggested, “we can hit him with creating a public disturbance.” “Gotta cover our ass,” remarked a third.

ACLU affiliates around the country have done a lot of cases defending the right to record in public places, but this case (press release, complaint) is particularly striking. I spoke to ACLU of Connecticut Legal Director Dan Barrett, and he told me about how the incident came about:

Our client is a guy who is very concerned with privacy, and who protests DUI checkpoints around the capital region here in Hartford, Connecticut. He feels they’re both unconstitutional and a waste of money. He has done public records investigations, for example, and recently found that for every two man hours put into a check point, it yields just one minor traffic citation—almost always for defective equipment. He was well known to the police, who also knew that he is a peaceful privacy and open-carry gun rights activist.

So Michael was out on Sept. 11, 2015 in West Hartford. He shows up, has a big sign that says “cops ahead, remain silent.” It’s handwritten—this is not threatening stuff. He stood on a small triangular traffic island. He was standing there for an hour, hour and a half without any problems. Then, the state police officers who were working the checkpoint come over to Michael, and the first thing they do is slap the camera out of his hand so it hits the ground. He thinks it’s broken.

It was really brazen. There’s another video showing that the first thing the state trooper does is walk up and with his open hand slap the camera down to the ground. He doesn’t even say anything like “put that down,” or “please lower your camera.” He just slaps it to the ground. Then he interacts with Michael as if nothing happened, as if, “I’m just allowed to do that, and I don’t even have to tell you why I just broke your camera.” It’s an amazing level of hostility.

The troopers search Michael, and theatrically announce that he has a gun—which they knew he had, and which he was carrying legally under Connecticut’s open carry law. So they take his gun, and they go run his pistol permit. As they’re doing that, Michael picks the camera up off the pavement—it’s a nice SLR that can also record video. He picks it up and tries to turn it on as one of the cops walks back over, and that’s where the video starts. The cop announces that “taking my picture is illegal.” Michael debates with him a little because he’s very knowledgeable about the law and the First Amendment, and the end result is that the trooper snatches the camera, walks away, and puts it on top of the cruiser, without realizing that it is working and is recording video.

This is the point at which the troopers’ accidental self-surveillance begins. Barrett continues:

So we get the three troopers at the cruiser talking about what to do. Michael’s permit comes back as valid, they say “oh crap,” and one of the troopers says “we gotta punch a number on this guy,” which means open an investigation in the police database. And he says “we really gotta cover our asses.” And then they have a very long discussion about what to charge Michael with—none of which appear to have any basis in fact. This plays out over eight minutes. They talk about “we could do this, we could do this, we could do this….”

In Connecticut, police officers have clear requirements under the law to intervene and stop or prevent constitutional violations when they see them. But at no time did any of the three officers pipe up and say, “why don’t we just give him his camera back and let him go.”

In the end they decide on two criminal infractions: “reckless use of a highway by a pedestrian,” and “creating a public disturbance.” They have a chilling discussion on how to support the public disturbance charge, and the top-level supervisor explains to the other two, “what we say is that multiple motorists stopped to complain about a guy waving a gun around, but none of them wanted to stop and make a statement.” In other words, what sounds like a fairy tale.

The tickets they gave him started a criminal prosecution in the Connecticut superior court. Eventually the state dismissed first one then the other count, though it took a whole year for him to disentangle himself from the criminal justice system.

Meanwhile, Michael filed a complaint with the state police. They claimed they couldn’t do their internal investigation without interviewing Michael. They kept calling Michael directly—and they did that even though there were criminal charges pending and Michael had a criminal defense lawyer. His lawyer kept calling them and saying “don’t you ever call my client again, you have to talk to me.” But they continued to try and get Michael to come in and be interviewed without his lawyer, claiming that they couldn’t do the investigation unless Michael gave a statement. It was unbelievable—this is an interaction that was recorded from start to finish on high-quality digital video. A year later there has been zero movement on the internal affairs investigation as far as anyone knows, which just shows that police and prosecutors in Connecticut should not be in charge of policing themselves.

As a result of the police’s clear inability to police themselves, the only avenue left for Picard and the ACLU of Connecticut is a lawsuit. That lawsuit is based on three claims, as Barrett laid out for me:

The first claim is the violation of Michael’s right to record—the efforts to prevent Michael from recording what was happening. That includes the fact that they swatted his camera and attempted to break it, and took it away, and they also tried to block him from taking photos of the license plates on the police cruiser using his cell phone after his camera was taken.

The second count is a Fourth Amendment claim: the seizure of Michael’s camera without probable cause to believe that it contained evidence of a crime, or a warrant for its seizure. The police cannot grab people’s property and confiscate it on a whim.

The third is a First Amendment retaliation claim. Whether it was because he was carrying a sign criticizing the police, because he was recording the police, because they just didn’t like him, or all of the above, it really appears from the evidence that they completely manufactured criminal charges against Michael.

If Michael had been just jotting down license plate numbers with a pen and pad and the troopers had taken it, or slapped the pen out of his hand saying “you’re not allowed to write down our license plate numbers,” everyone would recognize how ridiculous the situation was. And if the defendants had been any other kind of state or local employee—if they had been a road crew, and Michael had wanted to film them paving, and they had forced him to stop recording, their actions wouldn’t get any serious consideration by a court. Nothing about the defendants here being police makes their actions any more defensible. All Michael was doing was recording state employees doing their jobs on a public street.

The really interesting thing about this case is not just that the state troopers were so openly hostile to being recorded, or to anyone seeing what they were up to, but also that they appear to have had a very frank discussion inside the cruiser about how to punish somebody who was protesting them.

It’s surprising that we are still regularly hearing about incidents in which police are not respecting the constitutional right to record in public. But to hear police officers casually discussing the fabrication of criminal charges to retaliate against a protester is even more shocking. As Barrett put it to me, “It’s one of those things that on your darker days you may think happens all the time, but you never really thought there’d be a video recording of.”

Plain text

Anonymous

The "good cops" are just as bad when they don't report the bad ones....

September 19, 2016

11:26 PM

Anonymous

If you're going to literally quote someone, you have to actually quote them. That's not what the commenter said. He or she said, "by and large" and provided a reasonable support for the assertion, which is if you Google the terms, you'll find that police are abusing their authority very regularly, systematically. If you're going to engage in debate, you really should learn the rules.

As for the content of the argument, people aren't pissed at police because they hand out speeding tickets or are mostly good people doing their jobs. I've needed police and they've been excellent in those cases. But I'm not the only person whose had police interaction, and many who do, and and it seems more and more, are having very bad, even deadly, experiences.

The police are getting a very bad name, and people are having on them more and more, because of their own choices and behavior. That's called "personal responsibility."

If they want to be known as the good guys, they need to stand against brutality, are at and charge and testify against lawbreakers and literal murderers in their own ranks.

I'll say it again: people aren't pissed at cops for handing out speeding tickets.

September 19, 2016

11:57 PM

Anonymous

No, He is not stupid. This stuff happens on a very regular basis. But a boot-licking, cop lover would never admit to that.

September 20, 2016

1:01 AM

Regina Thompson

I agree with you, this reply goes to the person who called you an idiot and thinks these three cops are "the exception" and not the rule. When a so called good cop sees a bad cop in action and does NOTHING. He is no better than his crooked colleague. So in that instance, most of them ARE bad. I personally know some officers that I adore and trust fully. But that doesn't mean they are all out to serve and protect. CLEARLY our country has its hands full when it comes to the criminal justice system and police officers in particular. You can either admit that and work towards changing it, or DENY DENY DENY and keep your head buried in the sand. And if you don't realize there IS a problem, YOU ARE PART OF IT. Stop acting like all cops are heroes and can do no wrong. But I'm sure your opinion won't change until you experience police corruption first hand. Until then, continue to live in your fantasy world in which cops actually do the jobs WE PAY THEM TO DO.

September 20, 2016

3:41 AM

Anonymous

No, I think the assumption that almost everyone does everything right all of the time has quite substantial indications against it.

September 20, 2016

4:31 AM

Anonymous

And let me guess, "pending the investigation," the cops in question have in no way been punished for their behavior. While they clearly should be dismissed from the force right away. To begin with.

Anonymous

Anonymous

Yup. Ironically, too, this guy probably counts as "right-wing" - he's protesting DUI checkpoints as a privacy invasion, and an open-carry activist in his area. Then again, maybe not so ironic, as he's probably one of those on the right who would actually recognize abuse of police powers, seeing as he already considers certain kinds of checkpoints to be privacy invasions (and if it's anything like my area, where there's certain locales where the police are known to go out of their way to ticket people for minor infractions - such as a tail light being out when they weren't aware of it - he might kind of have a point. A lot of departments have quota systems in place for traffic tickets because the fines of course line their coffers and instead of local gov't budgeting properly they make sure that cops have to meet a minimum number of tickets because it's factored into the budget, instead of being an added bonus like it should be. Which is a terrible system, but apparently common!).